Davis v. Tennessee Valley Authority

• Decision Date: 29 March 1962
• Docket Number: Civ. A. No. 1174.
• Citation: 214 F. Supp. 229
• Parties: Garnett R. DAVIS, Plaintiff, v. TENNESSEE VALLEY AUTHORITY, Defendant.
• Court: U.S. District Court — Northern District of Alabama

214 F. Supp. 229

Garnett R. DAVIS, Plaintiff, v. TENNESSEE VALLEY AUTHORITY, Defendant.

Civ. A. No. 1174.

United States District Court N. D. Alabama, Northwestern Division.

March 29, 1962.

John P. Witsill, Washington, D. C., and Gorman R. Jones, Sheffield, Ala., for plaintiff.

Charles J. McCarthy, Gen. Counsel, Tennessee Valley Authority, Thomas A. Pedersen, Asst. Gen. Counsel, and R. Lynn Seeber, Attorney, Tennessee Valley Authority, Knoxville, Tenn., for defendant.

LYNNE, Chief Judge.

Plaintiff was, until his dismissal on February 6, 1957, an employee of the Tennessee Valley Authority (hereinafter referred to as "TVA"). In this action against the TVA he seeks a declaratory judgment that his removal was invalid because in violation of provisions of 5 U.S.C.A. § 652 and the Veterans' Preference Act, as amended (5 U.S.C.A. § 851 et seq.). The defendant has moved for summary judgment on the alternative theories that (1) the plaintiff has failed to join indispensable parties, the members of the Civil Service Commission, and (2) the suit is barred by laches.

The sequence of events pertinent to both issues raised by defendant are outlined in plaintiff's complaint and affidavit as follows. On May 10, 1956, plaintiff was notified by H. H. Hayes, his superior in the TVA, that he was to be discharged. Plaintiff subsequently pursued his administrative remedies with the TVA and the Civil Service Commission. Finally, on February 4, 1957, plaintiff was advised by the TVA that his employment therewith was officially terminated as of February 6, 1957. This termination was sustained by the Fifth Regional Office of the Civil Service Commission on March 7, 1957, and by the Board of Appeals and Review of the Civil Service Commission on August 2, 1957. On November 8, 1957, plaintiff's petition to the Chairman of the Board of Appeals and Review of the Civil Service Commission to reopen and reconsider the case was denied. On June 12, 1959, plaintiff filed a suit in the United States Court of Claims against the United States, described in his affidavit as "for salary due and owing to me as a result of my unjustified dismissal." The Court of Claims dismissed that suit in June 1960, on the ground that it had no jurisdiction over the action. On May 10, 1961, the present suit was filed in this court.

In attacking the jurisdiction of this court on the ground that plaintiff has not joined members of the Civil Service Commission as indispensable parties, TVA proceeds on the following theory. Section 14 of the Veterans' Preference Act of 1944, as amended (5 U.S.C.A. § 863), the alleged violation of which is the basis of this suit, gives to plaintiff the right to appeal his dismissal to the Civil Service Commission. When an appeal is so taken, the decision of the Civil Service Commission, according to Section 863, "shall be mandatory for such administrative officer of the agency of which the petitioner was an employee to take such corrective action as the Commission finally recommends * * *." Thus, defendant argues, any court review of a removal action is a review of the decision of the Civil Service Commission members who are therefore indispensable parties defendant. This precise question has been considered in several recent decisions, all of which rely ultimately on Blackmar v. Guerre, 342 U.S. 512, 72 S.Ct. 410, 96 L. Ed. 534 (1952). In Adamietz v. Smith, 273 F.2d 385 (3d Cir., 1960), cert. denied, 363 U.S. 850, 80 S.Ct. 1628, 4 L.Ed.2d 1732, a suit by a discharged postal employee against the postmaster of Pittsburgh, the requested relief included an injunction to restrain defendant from enforcing the Civil Service Commission order affirming defendant's removal action, and declaratory judgments declaring the dismissal action of the defendant and Post Office Department illegal and void, and the regulations of the Civil Service Commission void. Affirming the trial court's dismissal for failure to join indispensable parties, the court stated in 273 F.2d at 387:

"In dismissing the action, the district court relied upon Blackmar v. Guerre * * * supra, a strikingly similar case * * *. The appellant here maintains that the Blackmar case is no longer the law and has been effectively overruled, albeit sub silentio, by Shaughnessy v. Pedreiro, 1955, 349 U.S. 48, 75 S. Ct. 591, 99 L.Ed. 868 and Ceballos v. Shaughnessy, 1957, 352 U.S. 599, 77 S.Ct. 545, 1 L.Ed.2d 583.

"A careful reading of these cases convinces us that rather than overruling the decision in Blackmar, they reinforce the logic of that opinion. Even the appellant recognizes that they stand for the proposition that the question of indispensability of parties is dependent not on the nature of the decision attacked but on the ability and authority of the defendant before the court to effectuate the relief which the party seeks. * * *

"Even a cursory reading of appellant's prayer for relief indicates that the appellee herein is neither able nor authorized to grant all the relief the appellant seeks. This is particularly clear as regards that portion of the prayer which seeks a rehearing under rules other than those presently established by the Commission. Moreover, the appellee is not even in a position to reinstate the appellant in the face of a contrary holding by the Commission. The very statute under which appellant grounded his appeal to the Civil Service Commission makes binding upon appellee its rulings. § 14, Veterans' Preference Act of 1944, 5 U.S. C.A. § 863; also see 5 U.S.C.A. § 868." Emphasis added.

In accord are Zirin v. McGinnes, 282 F.2d 113 (3d Cir., 1960), and Haine v. Googe, 188 F.Supp. 627 (S.D.N.Y.1960), aff'd on opinion of district court, 289 F.2d 931 (2d Cir., 1961). The language of the Adamietz opinion is applicable here. Since TVA is bound by the order of the Civil Service Commission sustaining its removal action, the TVA alone is "neither able nor authorized" to grant the relief sought. Furthermore, it is evident that paragraph 2(f) of plaintiff's prayer specifically attacks the order of the Civil Service Commission on the ground that that body "failed to afford the plaintiff a hearing on his termination which was effective at the close of business on February 6, 1957."

Treating the defendant's motion for summary judgment on ground of plaintiff's failure to join the member of the Civil Service Commission as indispensable parties as a motion to dismiss, therefore, the plaintiff's complaint should be dismissed for lack of jurisdiction.

Inasmuch as it conclusively appears that this action is barred by laches, leave to amend the complaint to bring in such indispensable parties will not be granted. Application of the doctrine of laches to suits by discharged United States government employees for reinstatement or similar relief has been considered in a number of cases. The leading case is United States ex rel. Arant v. Lane, 249 U.S. 867, 39 S.Ct. 293, 63 L.Ed. 650 (1919), a petition for mandamus to require the Secretary of the Interior to restore the plaintiff to his position as superintendent of Crater National Park, from which he had been removed. The petition was filed twenty months after the plaintiff's discharge. In holding the suit to be barred by laches, the Court declared in 249 U.S. at 372, 39 S.Ct. at 294:

"When a public official is unlawfully removed from office, whether from disregard of the law by his superior or from mistake as to the facts of his case, obvious considerations of public policy make it of first importance that he should promptly take the action requisite to effectively assert his rights, to the end that if his contention be justified the Government service may be disturbed as little as possible and that two salaries shall not be paid for a single service.

"Under circumstances which rendered his return to the service impossible, except under the order of a court, the relator did nothing to effectively assert his claim for reinstatement to office for almost two years. Such a long delay must necessarily result in changes in the branch of the service to which he was attached and in such an accumulation of unearned salary that, when unexplained, the manifest inequity which would result from reinstating him renders the application of the doctrine of laches to his case peculiarly appropriate in the interests of justice and sound public policy.

* * * * * * *

"We agree with the Court of Appeals that it is entirely unnecessary to consider whether the removal of the relator from office was technically justified or not, since by his own conduct he has forfeited the right to have the action of the Secretary of the Interior reviewed * * *."

The Arant opinion has been followed in numerous decisions.¹

In the absence of circumstances tending to show that Davis was diligent in an attempt to seek redress of the alleged wrong or that the lapse of time before institution of this suit was justified, Arant and the subsequent cases must be deemed controlling in the present action. The affidavit of O. M. Derryberry, an officer of TVA, in support of defendant's motion for summary judgment indicates that since plaintiff's discharge, other employees have performed the work which would have been performed by plaintiff, so that the relief sought herein would require that two salaries be paid for a single service. The length of elapsed time between the exhaustion of plaintiff's administrative remedies with the denial of his petition for reopening and reconsideration by...